59 Minn. 85 | Minn. | 1894
The complaint alleges that plaintiff’s testate, Daniel Murray, was the owner of certain wheat; that he stored the same in the warehouse of C. C. Wolcott & Co., who agreed to hold the same for him in storage, but who wrongfully, and without the consent of said Murray, sold and delivered 1,300 bushels of the same to defendants, who converted the same to their own use. On the trial, plaintiff proved the delivery of the wheat to Wolcott & Co., and gave evidence tending to prove that, at the time of such delivery, Wolcott & Co. gave Murray the wheat ticket or contract hereinafter set out, and that the wheat was shipped to Minneapolis, and sold by Wolcott & Co. to defendants. At the close of the testimony, the trial court ordered a verdict for defendants, and from an order denying his motion for a new trial plaintiff appeals.
• . The only question- worthy of consideration is, what is the proper construction of said alleged receipt? which is as follows:
*90 “C. C. Wolcott & Co., Elevator No. 553.
“Minneapolis, Minn., March 1.2th, 1888.
“Received in store of D. Murray eighteen hundred bushels of No. 1,800 wheat, which amount, kind, and grade of grain will be delivered to the holder of this receipt upon surrender thereof, subject to the following terms of storage:
“[First. For receiving, elevating, insuring, delivering, and fifteen days’ storage, two and one-half cents per bushel.
“Second. Storage after the first fifteen days’ are one-half cent per bushel for each fifteen days or part thereof, but shall not exceed five cents for six months.]
“Third. This grain is held by us at owmer’s risk of loss or damage by the elements, riot, heating, the act of God, or which may in any way have been caused by the act of the holder of this receipt.
“Fourth. If, for any reason, it shall become necessary to remove this grain, we reserve the right to deliver it from any other elevator or warehouse operated by us, subject to the same rate of freight to Duluth, St. Paul, or Minneapolis as the present tariff rate from this station.
“Fifth. Any grain of the previous crop remaining in store on and after July 1st will be held at owner’s risk as to condition.
“Sixth. This grain is insured for the benefit of the owner. 1,800 bu.-: — lbs. By D. Murray, Agent.
“Subject to conditions on back.”
The conditions on the back are as follows:
“If any of the wheat embraced in this ticket shall prove to be covered by any chattel mortgage or other lien, or the partial or absolute title prove to be in another than the party to whom this ticket is issued, the same shall, if discovered before the delivery herein mentioned, be a sufficient reason for a refusal to deliver to the holder of this ticket; or, if discovered after the delivery of such wheat, such delivery shall be deemed an overdelivery, for which the holder of this ticket, to whom the wheat is delivered, shall be accountable, and to this extent this ticket shall be nonnegotiable.”
Written across the printed lines on the face of the ticket is the following;
*91 “The holder of this ticket hereby agrees to accept the Minneapolis prices, less freight, on the wheat from Waterville, Minn., to Minneapolis, Minn., and two cents per bushel when same is sold.”
The first and second divisions of the printed part of the face of the ticket, inclosed in brackets above, were erased by drawing lines through the printed lines.
It is contended by appellant that, when properly construed, this wheat ticket is merely a contract for storage, which fixes the price at which Wolcott & Co. shall buy the grain if Murray at any time elected to sell. It is contended by respondents, that it is either a sale of the wheat to Wolcott & Co., or authority to them to sell the wheat, as the agents of Murray.
We are of the opinion that the latter' is the proper construction ■of the instrument, — that its intent is to give Wolcott & Co. authority, as the agents of Murray, to sell the grain. If, as contended by appellant, it was a contract for storage, giving Murray the option to sell to Wolcott & Co. when he saw fit, all the provisions fixing both the long and short rates of storage would not have been stricken out, leaving the contract wholly silent as to rates of storage. This erasure indicates an intention to charge no storage, and such construction would give Murray the right to leave the grain in store as long as he saw fit, and pay nothing for storage; and, if he did not see fit to exercise his option to sell to Wolcott & Co., he could otherwise dispose of the grain, and Wolcott & Co. would get no compensation, either directly or indirectly, for the storage of the grain, and no benefit whatever from it. We cannot hold that this was the intention of the parties.
It is a well-settled rule of construction that the written part of a contract prevails over the printed part. Then, if there is any inconsistency between the printed and written parts of this instrument, the written part must control. By the written part of the contract., Murray agreed to accept Minneapolis prices, deducting freight and two cents per bushel, when the wheat was sold. It seems to us that no storage was contemplated except the temporary storage incident to receiving and shipping to the Minneapolis market, where the grain was to be sold by Wolcott & Co. for Murray. The printed provisions not erased out of the contract, and relating to storage, such as that
The trial court did not err in refusing, after the testimony was-closed, to reopen the case for the purposes of permitting plaintiff to-introduce oral evidence to vary or contradict the written contract. Even if such evidence was competent, the application would beadressed to the discretion of the court.
The order appealed from should be affirmed. So ordered.
(Opinion published 60 N.,W. 844.)
